In yet another 5-4 decision today, the US Supreme Court woke up to the realization that the plea negotiation process is a central part of the criminal justice system and that the Sixth Amendment therefore requires effective lawyering during this phase of a case. Perennial swing man Justice Anthony Kennedy wrote the decision in which he stated:

“Criminal justice today is for the most part a system of pleas, not trials,” Because of the modern-day importance of plea bargains, Justice Kennedy said, defense lawyers have significant responsibilities “that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.”

Here’s what happened in the two cases covered by the rulings: Galin Frye was charged in Missouri with driving with a revoked license. He never heard from his lawyer about a plea deal offered by the prosecutor, and the offer expired. After committing the same offense while the case was pending, Mr. Frye ultimately pleaded guilty and was sentenced to three years in prison. He later claimed ineffective assistance of counsel and asked for the original plea offer which would have kept him out of jail.

In the other case, the lawyer for defendant Anthony Cooper—who was accused of assault with the intent to murder—advised Mr. Cooper not to accept a plea that would have resulted in up to 85 months in prison. The advice was based on a the lawyer’s mistaken interpretation of what was needed to prove intent in Michigan. Mr. Cooper was found guilty at trial and given a sentence more than four times more severe than the original plea offer.

The law really does not effect NY lawyers that much as the Federal Appellate Circuit that governs our practice has ruled (since 1996) that part of a lawyer’s obligation is to effectively seek, advise and encourage plea offers that are in the client’s best interests. But the Supremes had never analyzed this issue and most of Sixth Amendment jurisprudence revolves around a lawyer’s effectiveness at trial and in investigating the case.

As usual, the decision was accompanied by a scathing dissent from Justice Antonin Scalia, leader of the Four Horseman of the Apocalypse (Him, Roberts, Alito and Thomas). Scalia said, reading the dissent from the bench, that the rulings “open a whole new field of constitutionalized criminal procedure: the field of plea bargaining law.” He added, “Until today, no one has thought that there is a constitutional right to a plea bargain.”

With all due respect to this brilliant jurist, the issue is not that there is a constitutional right to a plea bargain, its that there’s a constitutional right to effective, competent counsel. And any lawyer who fails to advise a client about a plea deal and who fails to advise the client when its in the client’s best interest to take the deal is incompetent and ineffective.

Justice Kennedy made clear that in order for this claim to be successful, the defendant would have to show that the offer was made; that it was not told or recommended to the client; that it was later withdrawn ; that a defendant and the court would have accepted it had it been offered or properly explained and recommended; and that the prosecution or the court would not have prevented its implementation. The case is important for its recognition of the importance of plea bargaining in the criminal justice system (97% of all Federal convictions are the result of pleas and 94% of all State convictions are the result of pleas). It is also important for its affirmation of a basic constitutional principle – that the criminally accused are entitled to effective competent representation at every critical stage of the proceeding. How can a stage that results in 97% and 94% of all convictions not be a critical stage of the proceeding?

Well according to Scalia, as long as the defendant gets a fair trial he has received his constitutional protections. It does not matter that the defendant would not have gone to trial had he known about a fair plea offer. In fact, in his dissent, Scalia pines longingly for the jurisprudence of other countries which do not allow for any plea bargaining and decries our own system of negotiation:

In Europe, many countries adhere to what they aptly call the “legality principle” by requiring prosecutors to charge all prosecutable offenses, which is typically incompatible with the practice of charge-bargaining. See, e.g., id., at xxii; Langbein, Land Without Plea Bargaining:How the Germans Do It, 78 Mich. L. Rev. 204, 210–211 (1979) (describing the “Legalitätsprinzip,” or rule of compulsory prosecution, in Germany). Such a system reflects an admirable belief that the law is the law, and those who break it should pay the penalty provided.

In the United States, we have plea bargaining a-plenty,but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.

Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system;rather, as the Court announces in the companion case to this one, “‘it is the criminal justice system.’”

Scalia is correct that this opens a can of worms and that counsel, the court and the government will have to constantly document what plea offers are extended; which are rejected; how long will they remain open; what are the consequences for not taking them by whatever deadline is set by the government or the court; etc etc. But this messiness is worth the effort to ensure that those charged with crimes are being given the basic information about their case and that they are allowed to make informed decisions about how to proceed. As Justice Kennedy wrote in stating what should be the obvious:

The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.

By the way – does everyone realize that Justice Kennedy could be the second most important person in the country – after the President? As the #5 man on many decisions he is shaping the law of this land and deciding what the constitution requires for all of us.